Mahindasoma v. Gunawardena (Seneviratne J )
BERTIE FERNANDO AND OTHERSv.
MISSIE FERNANDO AND OTHERS
COURT OF APPEAL.
E. DE SILVA, J. AND DHEERARATNE, J.
A. 339/76 – D.C. COLOMBO 13116.
MARCH 18, 1985.
Deed of Gift – Non-acceptance – Revocation of gift by deed of rectification-Burden ofproof-Evidence Ordinance, section 101 (illustration (bl).
The burden of proving acceptance of a deed of gift is on the party claiming under it.Where there has been no valid acceptance of a deed of gift, the donor is perfectlyentitled to revoke it even unilaterally and make another disposition.
Sri Lanka Law Reports
(1986} 1 Sri L.g.
Cases referred to:
Falil A. Caffoor v. M. Y. M. Hamza (1956)58 NLR 33.
Nonai v. Appuhamy (1919) 21 NLR 165.
APPEAL from the District Court of Colombo.
P. A. D. Samarasekera. P.C. with N. R. M. Daluwatte. P.C. and L. de Silva for 5th, 6th,7th and 8th defendant-appellants.
J. W. Subasinghe. P.C. with Miss E. N. P. Edirisinghe for 1st to 4thdefendant-respondents.
Cur. adv. vult.
May 17, 1985.
The plaintiffs filed this action on 23.5.1971, to partition premisesbearing Assessment numbers 84 and 86, School Lane,Bambalapitiya. depicted in plan C 1039 made by Mr. C. C.Kumaraswamy, Licensed Surveyor.
The owner of the premises, at one time, was admittedly, one MiguelFernando, who was married to one Selestina. According to theplaintiffs, Miguel by deed of gift No. 162 of 7.2.1935 (P3), gifted thecorpus to his three children, Missie the 1st plaintiff. Joslin the 1stdefendant and Sadiris the 5th defendant, subject to a fideicommissum, in favour of the children of the donees. By P3. the 1stplaintiff and the 1 st defendant get one fourth share each, while the 5thdefendant gets the balance half share of the corpus. 2nd to 5thplaintiffs are the children of the 1 st plaintiff, 2nd S4th defendants arethe children of the 1st defendant and 6th to 8th defendants are thechildren of the 5th defendant, and are fidei commissaries in terms ofP3. The life interest of Miguel and Selestina in the property, werereserved by this deed. Of the donees, only the 1 st defendant and the5th defendant signed P3 accepting the gift.The 1st plaintiff was notpresent at the execution of the deed but her mother Selestina signedaccepting the gift on behalf of herself and on behalf of the 1 st plaintiff.It was on this deed, that the plaintiffs claimed one fourth share of thecorpus.
The contesting 5A to 8th defendants filed their statement of claimon 22.1 1.1 972. denying that any interest'passed to the plaintiffs onP3. for want of lawful acceptance of the gift by the 1st plaintiff. The
Bertie Fernando v. Missie Fernando (Dheeraratne, J.)
contesting defendants further alleged that Miguel had rectified P3subsequently, by executing another deed of gift No. 1 64 of3.12.1935 (6D1), by which deed no interests in the corpus had beengifted to the 1 st plaintiff.
Deed of gift 6D1 recites-
"And whereas the said Pattiyage. Seletina Fernando, who,purported to accept the said deed of gift for the said ThappuligeMissie Fernando was not requested (and) not authorised to acceptthe said gift by the said Thappulige Missie Fernando and the same istherefore void and of no effect.
And whereas the said donor, the said Thappulige MiguelFernando, is now desirous of rectifying the said deed of gift bydeclaring that the aforesaid land and premises should be held byway of gift, solely by his son Thappulige Sadiris Fernando and hisdaughter the said Thappulige Joslin Fernando, in equal shares,subject to the terms and conditions containing in the aforesaid deedof gift No. 163 dated 7.2.1935 and omitting therefrom the saidThappulige Missie Fernando as donee therein."
Besides Miguel. Selestina, Sadiris and Joslin were signatories to thisdeed 6D1
Thus, the main question for determination at the trial was, which ofthe two deeds P3 and 6D1, was valid. Missie the 1st plaintiff gaveevidence for the plaintiffs, while the 5th defendant's widowDamayanthie, who had joined the family after P3 was executed, gaveevidence on behalf of 5A to 8th defendants. The learned trial judgetook the view that P3 validly conveyed title to the plaintiffs and further,that the donee of P3, could not have 'ex parte' revoked the gift, byexecuting 6D1. It.is from this judgment that the 5 (a) to 8thdefend«nts have preferred this appeal.
It was contended before us, on behalf of the appellants, that thelearned trial judge misdirected himself, on the question of the burdenof proof in the case and further that he had proceeded on theassumption that P3 is a valid deed. The learned trial judge has stated:
"The deed No. 1 63 appears to be expressly a valid deed of gift. Itis stated therein, that, on behalf of the 1st plaintiff, her motherSelestina Fernando has accepted the gift. Selestina Fernando hasalso stated in deed No. 1 64, that she had signed for the acceptanceof the gift on the earlier deed. In view of this, I feel the burden ofproof to say that there was no valid acceptance of the gift, rests onthe 6th to 8th defendants."
Sri Lanka Law Reports
11986] 1 SriL.R.
In terms of section 101 of the Evidence Ordinance, whoever desiresany court to give judgment as to any legal right or liability dependanton the existence of any facts which he asserts,'must prove that thesefacts exist. Particularly, illustration (5) to that section reads:
"A desires a court to give judgment that he is entitled to a certainland in the possession of B, by reason of facts he asserts and whichE denies to be true. A must prove the existence of those facts."
Our attention was drawn to the judgment in Falil A. Caffoor v. M. Y.M. Hamza (1) wherejn Gratiaen, J. at page 36 stated:
"the burden was on the plaintiff to establish a valid acceptance ofthe gift, and not on the defendant to disprove it."
Therefore, it appears to me, that the learned counsel for theappellants is correct in his submission, that the burden of proof inestablishing the acceptance of the deed of gift P3. was on theplaintiffs.
It was also contended before us, that the learned trial judge was inerror, when he stated, that according to the 1st plaintiff's testimony,her mother was authorised to accept the gift on her behalf, at the timeP3 was executed. Although the 1st plaintiff has averred so in theplaint, her evidence on this crucial point does not lend support to thisfinding of the learned trial judge.
The 1st plaintiff's only evidence on this matter was as follows-
"Q – Did you tell your mother what has to be cfjne in regard to thisland?'
A – No, it was my father who said.
Q – What did father say?
A – He asked my mother to sign on my behalf. He told that it wasnot necessary that I should come. I was at that time in delicatehealth, and was unable to go. That is why he said so."
The 1st plaintiff got married in 1928 and at the time of theexecution of P3, she was about 38 years old. From the time of themarriage she was living at Moratuwa. Her parents, brother and sister
Bertie Fernando v. Missie Fernando (Dheeraratne, J.)
fived in Colombo, in the house situated in the corpus. The allegedconversation referred to above, regarding the execution of P3, tookplace when the 1st plaintiff's parents visited her at Moratuwa. Migueldied in 1 937 and Selestina in 1 942. According to the 1 st plaintiff, shewas completely ignorant of 6D1 till about 1 970, when she was told byher sister that she has no title to the corpus. This revelation took place,on the 1st plaintiff questioning her sister of an alleged attempt to sellthe corpus.
To evaluate this evidence of the 1st plaintiff, regarding execution ofP3, it would be relevant to refer to her evidence on her relationshipwith the parents. According to her, there was no ill feeling betweenher and her parents and not even between her and her brother andsister. The 1 st plaintiff stated –
"My mother and father are honest people, my parents are not thetype who will act against me. They treated other children and meequally. They had no necessity whatsoever to act against me. Myfather treated all three of us alike. So was my mother."
No explanation came from the 1st plaintiff regarding the conduct ofthe parents in executing 6D1, which conduct, seems strange, indeed,from the point of view, of such an affectionate relationship. It appearsto me, in these circumstances, that on the question of acceptance ofthe gift, more reliance could be placed on the clear and unambiguousstatement contained in the recital of 6D1, executed 10 months afterthe execution of P3, rather than on the vague and equivocal evidencegiven by the 1st plaintiff, after nearly 39 years had elapsed. Theprobability is that, the 1 st plaintiff gave no authority to her mother, toaccept the gift. No evidence came from the 1st plaintiff that P3 wasaccepted by her iniany other manner recognized by law, for example,by wa^ of entering into possession of the property. Once the burden ofproof in the case is correctly placed on the plaintiffs, it seems to methat the conclusion I have arrived at, becomes inescapable.
The conduct of the parties, after execution of PI, also lendssupports to the view I have taken. The 1 st plaintiff never attempted toexercise any semblance of a proprietary right in the corpus since1935. Joslin, the 1st defendant by deed 179 of 13.3.1939,produced marked 1D2, sold her interests in the corpus to Sadiris the5th defendant. Sadiris by deeds 5D1 of 13.2.1939. 5D2 of4.7.1940 and 5D3 of 29.9.1941 mortgaged the entire corpus to
Sri Lanka Law Reports
 1 SriL.R.
various parties, without recognising the rights of any other person.'Thereafter. Sadiris by deed 596 (1D3) of 1.6.1957. resold to the 1 stdefendant an extent of 10.5 perches with reference to a plan, andthose parties are in divided possession of the corpus. On the portionpurchased by the 1st defendant, she has erected a new upstairbuilding, apparently without any protest from the 1st plaintiff. The 5thdefendant had made various alterations and improvements to the oldhouse standing in the corpus, also without any protest from the 1 stplaintiff.
Once the gift P3 fails for want of acceptance on behalf of the 1stplaintiff, the next question for consideration would be the validity of6D1. "Where the acceptance has not followed, the donor is at libertyto change his bare intention." – Censura Forensis – 1-4-12-16(Laws of Ceylon by Walter Perera). On the authority of Nona v.Appuhamy (2) the effect of non-acceptance is to enable the donor torevoke the gift and to make any other disposition I am of the view,that once gift P3 failed for want of proper acceptance by the 1stplaintiff, the donor was perfectly entitled to revoke the gift madeearlier, even unilaterally. This would make way for the validity of 6D1,and consequently, the plaintiffs would get no title to the corpus
An alternative argument was advanced to us by both the learnedcounsel for the appellants and by learned counsel for the 1st to4th defendant-respondents, on the basis of prescriptive rights ofparties, in the event of our holding that there was'-a valid acceptanceof P3 by the 1st plaintiff. In view of the finding I have arrived at, itwould be unnecessary to address my mind to that question
The appeal is therefore allowed and the plaintiffs' action isdismissed with costs. The plaintiff-respondents will pay a sum ofRs. 525 to the defendant-appellants as costs of this appeal.
B. E. DE SILVA, S. – I agree.
1-BERTIE FERNANDO AND OTHERS v. MISSE FERNANDO AND OTHERS